Court Discusses Issues Regarding Problematic Search Warrant

A New York Criminal Lawyer said in this Criminal case, an Associate Village Justice of this Court, signed a search warrant directed to “any police officer of the County of Nassau.”

A New York Criminal attorney said that the Senior Building Inspector submitted what may be described as an exhaustive affidavit in support of the application. The Court wonders why, in view of the thoroughness of this affidavit and the apparent pre-warrant investigation, that a search and search warrant were needed at all unless the Village is simply trying to test the legal waters in this case to determine whether they may have another tool at their disposal, namely search warrants, that they may use to enforce the Village’s zoning and building code laws. The application for and the execution of a search warrant may in themselves deter the proliferation of illegal housing. The execution of a search warrant is an extremely frightening event for those subject to it. The court questions the need for this warrant because there is no legal requirement that a warrant be obtained in order to take photos of the outside of the premises from a public thoroughfare in front of the home.

However, a New York Criminal Lawyer said this Court finds that the Village has acted in good faith attempting, for example, to obtain the homeowner’s consent for the search prior to seeking the warrant and no doubt believing that similar actions have been approved and utilized in other villages without challenge.

A Nassau County Criminal Lawyer said that in colloquy with the Court, counsel noted that there was no record of the proceedings before the Associate Justice. Therefore, the Court ruled that the testimony during the hearings in this case would be limited to the “four corners” of the search warrant application and the affidavits contained therein. As to any other matters that may have been before the Associate Justice, but not memorialized in the form of a transcript or in some other way, those matters were disallowed and witnesses were not permitted to testify about them.

A Staten Island Criminal Lawyer said in a case, the Appellate Division, Second Department reviewed the conduct of a “Code Enforcement Officer” in applying for a criminal search warrant to conduct a search of a club by taking photos and measurements regarding alleged zoning violations. The Town contended that this was a mere administrative inspection rather than a criminal search and that it should accordingly be judged pursuant to more relaxed standards applicable to inspections. The Second Department disagreed stating that the search was more criminal in nature. The Court found no objection to the taking of photos and measurements but also remarked that the limitations of the warrant were strictly adhered to in that “it is undisputed that no attempt was made to search any individuals on a property.”

`The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.’

“In cases in which the Fourth Amendment requires that a warrant to search be obtained, `probable cause’ is the standard by which a particular decision to search is tested against the constitutional mandate of reasonableness. To apply this standard, it is obviously necessary first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen. For example, in a criminal investigation, the police may undertake to recover specific stolen or contraband goods. But that public interest would hardly justify a sweeping search of an entire city conducted in the hope that these goods might be found. Consequently, a search for these goods, even with a warrant, is `reasonable’ only when there is `probable cause’ to believe that they will be uncovered in a particular dwelling.”

“The primary governmental interest at stake is to prevent even the unintentional development of conditions which are hazardous to public health and safety. Because fires and epidemics may ravage large urban areas, because unsightly conditions adversely affect the economic values of neighboring structures, numerous courts have upheld the police power of municipalities to impose and enforce such minimum standards even upon existing structures. In determining whether a particular inspection is reasonable and thus in determining whether there is probable cause to issue a warrant for that inspection the need for the inspection must be weighed in terms of these reasonable goals of code enforcement.”

“Chapter 565 of the Laws of 1963 was the initial version of the Uniform District Court Act. In § 2001 thereof, the district court’s jurisdiction of misdemeanors is stated to be “concurrent” with that of police justices, the descriptive term for judges of the village courts. The language of § 2001 has since been amended, as stated above, to reflect that the criminal jurisdiction of the district courts shall be as provided in the Criminal Procedure Law. Nevertheless, this act is important in evidencing the fact that, at this point, village courts within the area of the Suffolk County District Court were still viewed as having concurrent criminal jurisdiction with the District Court. Chapter 570 of the Laws of 1963 is in accord with this reasoning.

The application for a search warrant is an extremely delicate and sensitive matter governed very precisely by the Criminal Procedure Law. The fact that such an application is made on an ex parte basis makes it even more serious. While we are a local criminal court we are not given authority over misdemeanors and felonies. In this County, we have a District Court and a County Court to preside over those matters. The Incorporated Village of Westbury does not have its own police department. The Nassau County Police Department executes on arrest warrants issued by the Village Justice Court. They have the experience, training and legal authority to do so. The Nassau County Police Department did participate in the execution of the search warrant issued in this case. The Village incurs no liability for the lawful issuance of an arrest warrant. However, the illegal issuance of a search warrant without judicial authority to do so may be quite another matter.

There are other means that may be used by the Village to prove illegal occupancy such as surveillance; consent searches; inspection of assessment, property taxes, mail, voter registration and other records, including but not limited to Department of Motor Vehicles, plumbing, Water District and electrical meters. “Under the judicially created exclusionary rule, where a search and seizure is made in violation of an individual’s constitutional rights, the property seized cannot be introduced as evidence against the individual at a trial if suppression of the material seized may help deter future unlawful police conduct.”

To be sure the illegal occupancy of multiple dwellings presents a dire threat to the safety of the inhabitants; increases the usage of municipal services such as garbage removal without taxation and, in many cases, causes unsightly conditions and a depreciation of property values. Adjoining property owners may have just cause to complain unless they too have an economic need to create an illegal dwelling in their own homes and rent out space therein. The problem of illegal multiple dwellings is that once tolerated by a municipality, they then proliferate.

The Court realizes that in suppressing evidence of this genre, it may unavoidably add to the problem of proliferation of illegal dwellings. The Court is compelled to prioritize constitutional protections over enforcement measures that are being used to curtail the spread of illegal dwellings. This Court fully supports aggressive code enforcement, but that can never occur at the expense of constitutional liberties. No matter how poor their station in life, when it comes to our Bill of Rights, the Constitution makes no distinction between citizens and illegal aliens or between the rich and those compelled to reside in substandard conditions. The liberties of one are the liberties of all.

A question presented is if this Court was authorized to issue a search warrant, was the warrant nonetheless constitutionally deficient for not “particularly describing the place to be searched.” New York State Constitution Art. I § 12; United States Constitution, 4th Amendment and C.P.L. § 690.15(1)(a). The warrant in this case provided for a search of the entire premises, the only limitation being that the scope of the search included photographic and videographic recording of the premises.

“The question to be determined now is whether it was proper to issue a search warrant in order to inspect the premises involved. The warrant procedure is designed to guarantee that a decision to search private property is justified by a reasonable governmental interest. But reasonableness is still the ultimate standard. If a valid public interest justifies the intrusion contemplated, then there is probable cause to issue a suitably restricted search warrant.

“Where considerations of health and safety are involved, the facts that would justify an inference of `probable cause’ to make an inspection are clearly different from those that would justify such an inference where a criminal investigation has been undertaken

Today, this Court is establishing what may hereinafter be referred to as the “probable cause plus standard” for the issuance of search warrants regarding allegations of building code violations in residential dwellings within this Incorporated Village. The new standard is to first satisfy the local requirements of probable cause. Then, the three prong test as set forth herein must be met. The Court will give consideration to what efforts have been made to investigate or to obtain a valid consent search; to provide actual notice to owners and all occupants of the alleged illegal occupancy and the possibility of a search of their premises; all alternatives, if any, to conducting the search and if issued, the search will be limited to business hours on a single day by specified individuals and for a clearly defined, specified purpose such as the taking of photographs of the premises, not people, in a given area of the residence.

This Court will not permit an unbridled search and it respectfully recommends that building inspectors and the police be afforded more training and be permitted to attend seminars or in service programs concerning the application for search warrants and their execution.

For the reasons stated herein this Court finds that the evidence obtained was the product of an illegal search and seizure and therefore any evidence seized as a result must be suppressed under the “fruit of the poisonous tree doctrine.” No portion of this decision is meant to override or interfere with search warrants pertaining to subjects other than building code violations where searches have been conducted or authorized by agencies or courts outside of the Incorporated Village of Westbury.

In summary, this Court finds as follows:

1. That it has no jurisdiction over misdemeanors or to issue search warrants in the case of misdemeanors;

2. That the Court has the jurisdiction and authority to issue search warrants of a residence when there is probable cause to believe that a building code violation is being committed providing the three-prong test has been met and further that the warrant is not overly broad; and 3. The Court here finds that the aforementioned three-prong test has not been met; that the warrant was overly broad and that all of the evidence seized must be suppressed.

For your criminal law concerns, don’t hesitate to consult our New York Criminal attorneys, we are always here to serve and protect your rights from abuse. In other cases, you can consult our New York misdemeanor lawyers for a reliable advice.